The Volokh Conspiracy

I’ve spent much of the past several months reading through the extraordinary Essays of Michel de Montaigne (in the terrific Donald Frame translation — very, very highly recommended), and I recently stumbled across this, at the beginning of #35 ["On Administration"]

My late father, a man of a decidedly clear judgement, based though it was only on his natural gifts and his own experience, said to me once that he had wished to set a plan in motion leading to the designation of a place in our cities where those who were in need of anything could go and have their requirements registered by a duly appointed official; for example: “I want to sell some pearls”; or “I want to buy some pearls.” “So-and-so wants to make up a group to travel to Paris”; ‘”So-and-so wants a servant with the following qualifications”; “So-and-so seeks an employer”; “So-and-so wants a workman”; each stating his wishes according to his needs.

It does seem that this means of mutual advertising would bring no slight advantage to our public dealings; for at every turn there are bargains seeking each other but, because they cannot find each other, men are left in extreme want.

Nice!

A couple of days after the now-fairly-infamous Freeh Report was released with the results of the investigation into the Penn State child abuse scandal, I wrote the following here on the VC (in “NCAA To the Taxpayers of Pennsylvania:  Drop Dead“):

So let me get this straight: The NCAA is ordering the taxpayers of Pennsylvania, because of the misdeeds of their agents, to set up an endowment program for preventing child sexual abuse and fund it to the tune of sixty million dollars?? And oh, by the way, taxpayers of Pennsylvania: you can take it out of lab space, computers, and teaching salaries, but YOU MAY NOT PAY THIS FINE BY REDUCING CURRENT SPENDING ON ATHLETICS!

This would be hilarious, except it is pathetic, and it has real consequences. I happen to teach at a (different) public institution in Pennsylvania, and I can tell you this: $60 million is a decent-sized chunk of a higher education budget that is under severe strain these days, with the Governor having recently proposed a 30% cut in all higher ed funding because, as he put it, “we simply don’t have the money.” This is real money we’re talking about, and maybe Penn State needs a 60 million dollar fund for fighting child sex abuse and maybe that money could better be spent elsewhere at the University — what in God’s name gives the NCAA the right to determine that?

. . . If Governor Corbett actually gives a damn about higher eduction, he should give this sanctions order all the respect it deserves, and tell the NCAA, on behalf of the citizens and taxpayers of Pennsylvania, to go to hell.

News now reaches me that Corbett has taken my advice (surely he reads the VC regularly, no?), and has filed suit against the NCAA challenging the imposition of these sanctions.  Good for him.  I haven’t had the chance to  look at the specific legal arguments being advanced, but it’s a step in the right direction.  I’ll repeat my offer to anyone at the PA AG’s office who might be reading this:  If you’re looking for a PA legal academic to help on this suit, you know where to find me.

Like I said (see “Republicans Going Copyleft”), things are getting pretty interesting now that  the political “right” has discovered that there might be some mileage to be gained by seizing the initiative on copyright reform, an issue  (a) that is appealing to young voters, and one that (b) the Democrats, dependent on Hollywood dough, have ceded.

The backlash/debate has begun in earnest:  a new paper, published by the Center for Individual Freedom, by 3 authors with impeccable conservative credentials (including former Solicitor General [under the 2d Bush] Paul Clement and former Ass’t A.G. [also under Bush II] Viet Dinh), on “The Constitutional and Historical Foundations of Copyright Protection.”  The paper makes  the argument that “from its inception copyright was seen not merely as a matter of legislative grace designed to incentivize productive activity, but as a broader recognition of individuals’ inherent property right in the fruits of their own labor” — that, in other words, copyright  protection was justified not merely on utilitarian grounds — as a means to increase the supply of creative works by giving authors and inventors  a property right in their creations — but as a natural right, akin to the right to free expression and the right to due process of law.

As a historical matter, I think they’re dead wrong.  There’s an immense literature on this subject, and considerable debate on the question, impossible to summarize here.  [If you're interested, here's a good place to start].  But my reading of the historical record is quite the opposite: that the consensus among the framing generation was that authors had no natural right to their creations, and that copyright (and patents) were, as Jefferson put it, “the gift of social law.”  [It's why, incidentally, Jefferson altered George Mason's 1776 Virginia Declaration of Rights, which had declared that the "inherent rights" possessed by all included "the enjoyment of life and liberty, with the means of acquiring and possessing property . . ." when it came time to draft the Declaration of Independence.]

I also think they’re wrong, on the merits:  I don’t believe in a  ”natural right” to the productions of the human mind.  I think Jefferson had it right.  In his justly-celebrated 1813 letter to Isaac Macpherson on the question of  whether ”inventors have a natural and exclusive right to their inventions,” he noted that “those who have seriously considered the subject” agree that there is no natural right real property (“a separate property in an acre of land, for instance”);  it would therefore be “curious” to hold that “an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.”

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.

Does it matter?  You bet it matters.  The utilitarian/Jeffersonian case for our current copyright law — for giving a century’s worth of protection to every email you write, every drawing your 8 year old daughter puts onto paper, every photograph you take, every rendition of “Angel from Montgomery” sung at open mics across the land ... — is simply impossible to make.  A genuinely utilitarian/Jeffersonian copyright law, one that looked only to the need to provide the proper incentives for the creation of new works, would look very different — much, much smaller and limited in scope — from the copyright law we now have.  If, however, you believe  that authors truly have a right to control their creative productions, then you’re much less likely to do the kind of scaling-back that the Jeffersonians are clamoring for.

[Early last week the folks who run the blog at the American Constitution Society asked me to contribute a posting on the World Conference on International Telecommunications, taking place in Dubai.  The original posting is here; I've also reprinted it in full below.  I decided against just giving the link and sending you all over to the ACS site mostly because the conversation here on the VC usually has, shall we say, its own special flavor.  I'll post some additional thoughts on the outcomes of the Dubai meeting shortly. DGP]

Just Because the Sky Isn’t Falling, Doesn’t Mean It Cannot Fall

As you may have heard, the UN wants to take over the Internet. Two questions: 1. Really? And 2. Should we be worried?

On 1: The vehicle for the alleged takeover is the World Conference on International Telecommunications, now underway in Dubai. The WCIT has been convened by the International Telecommunications Union (ITU), and it involves, in the ITU’s words, “review of the current International Telecommunications Regulations (ITRs), which serve as the binding global treaty designed to facilitate international interconnection and interoperability of information and communication services.”

It sounds harmless enough. The ITU (and its regulations) go back almost 150 years. In the late 19th and early 20th century, international telecommunications meant telegraphs and telephones, and the ITU was created by 20 European countries to standardize telephone/telegraph interconnection protocols so that a telegraph message or phone call placed in London could be received intact in Rome (and, somewhat later, Rio de Janeiro and Riyadh). It’s not a trivial task, involving both technical standards and economic arrangements (to work out a system for allocating transmission charges), and by all accounts the ITU performed it well. Because telecommunications facilities were generally state-owned and state-operated for most of this period in most of the world, the ITU was constituted as a kind of “treaty organization,” one to which nation-state governments sent official representatives from the Ministry of Telecommunications (or its equivalent) to negotiate with their counterparts from other countries. After WW II, the ITU was absorbed into the United Nations as a “specialized agency.”

The Internet – surely the most interesting development in the rather stodgy world of international telecommunications in a long while – arose and spread across the entire globe without any ITU oversight or involvement whatsoever. The Internet Protocols – the standards and operating processes and principles that defined, and that continue to define, the global Internet, and that allow that network to do the remarkable things it does – were developed entirely outside of ITU-sanctioned or ITU-organized processes. Not that the ITU was inactive during the formative years of the Internet; indeed, it produced its own set of inter-networking protocols (known as the “Open Systems Integration” protocols) in the mid-1980s, the official, UN-sanctioned entry, as it were, into what was then the heated world of competing inter-networking schemes. The ITU’s Internet never became “the” Internet , i.e. the single, global communications platform that we now take for granted; in the eyes of many observers (myself included), that was not a coincidence. the ITU’s scheme was based, unsurprisingly, on a network architecture that had been developed for international telegraphy and telephony – one that assumed centralized control of within-country networks and single points of contact (gateways) between those within-country networks. Given the choice, users – overwhelmingly – found more potential in joining an inter-network whose architecture – open and entirely decentralized – was very, very different – and the rest, as they say, is history.

Over the past 20 or 30 years, the ITU has continued its work on standards and protocols for the legacy telephone and telegraph networks. But an “International Telecommunications Union” that can only influence development of those legacy networks is doomed to irrelevance in the 21st century, when most of the interesting action in international telecommunications has been and will continue to be on the Internet.

Which brings us to Dubai and the WCIT. The ITU is using this Conference to assert a generalized “jurisdiction” over the Internet and over the Internet Protocols, and it is entertaining, for the first time, proposals from Member States that would modify portions of the Internet’s technical underpinnings within its process for revising and amending the International Telecom Regulations. The specifics of the various proposals are complicated, and understanding exactly what is being proposed, and by whom, would be difficult even if the ITU operated transparently (which it does not). (I’ve provided some resources below where you can get additional information about the various proposals that appear to be on the table, if you are interested). Some of the proposals reflect features you would expect to find on an Internet designed by the governments of China, Russia, Iran, or Congo: increasing capabilities to “sniff” and trace Internet traffic from sender to recipient, restrictions on the routing of Internet communications, and means to more easily collect and share subscriber identity information. Others would give the Member States of the ITU a greater say in the operation of the Internet’s naming and numbering system – one of the truly foundational parts of the Internet infrastructure. Others would modify the current scheme (known as “peering”) pursuant to which network operators pass data from one network to another across the Internet, converting it into a “sender pays” model more closely reminiscent of arrangements for existing telephone network traffic.

So: should we be worried about all this? The Internet Society, Global Voices, the Center for Democracy and Technology, Google, columnist Larry Downes at Forbes, and a host of others have been beating the drum to rally the opposition, pointing both to the appalling nature of particular proposals, and the general ill-advisedness of injecting the UN (and UN politics) into Internet “governance.”
Prof. Jack Goldsmith takes something of a contrarian view. As bad as many of the proposals are, he reminds us, they’re just proposals, and many are extremely unlikely to attain the requisite majority support among the ITU’s Member States. And more significantly, he notes that even if they are enacted, ITRs are not self-enforcing; the ITU has no army or other mechanism to enforce any of its “regulations” other than by adoption by individual Member States, in their own implementing rules and regulations. The ITU, in short, can’t really do anything to the Internet that we don’t want it to do.

There’s something to be said for both sides. Some of the proposals would indeed have dreadful consequences for free expression over the Internet, and if they are indeed unlikely to pass, that is, in part, a consequence of the drum-beaters who have shone a light on them. (It’s what I have called elsewhere the “Reverse Tinkerbell” effect – instead of becoming true as more people believe it to be true, it becomes false; the more people who believe that the ITU is going to act badly, the more light that will be shone on what it is up to, and the more light that is shone on what it is up to the less likely it becomes that the ITU will act badly.)

And it’s also correct to point out that the Internet is a hard thing to “take over.” The ITU (or anyone else, for that matter) can promulgate all the “Internet Protocols” it wants to – but at the end of the day, they only become truly binding on Internet users when they’re adopted and implemented by Internet Service Providers around the globe (whether under legal compulsion or voluntarily).
But to me, Goldsmith’s reaction misses, or elides, an important point, one that will (I hope) become the focus of debate and discussion over the next decades. To begin with, we all derive incalculable benefits from having a single global communications platform that admits all users and allows all users to communicate with all other users, wherever they may be located. Anything that interferes with that principle is presumptively – in my book – a bad idea. Even if the ITU were nothing more than a gathering place for the exchange of network design ideas among those who would fragment the global Internet along national boundaries, it might be time, as Andrew McLaughlin has persuasively argued here, to start to think about dismantling it altogether.

And I continue to believe that there is an even more fundamental principle in play in Dubai. Who should make the rules that bind all Internet users? The Internet has, in just 30 years or so, become an immensely and unimaginably valuable thing – valuable in terms of dollars and cents, and valuable for any number of other reasons not so easily monetizable. (See Spring, Arab) That means that control over the processes by which its rules – the ones binding across the entire inter-network – get made is also an immensely and unimaginably valuable thing, if you could somehow get your hands on it, or even a piece of it. Once it’s in play – and WCIT suggests that it is now in play – how do we protect it? From what and from whom do we protect it?

And hardest of all, perhaps: Who are “we”? Who gets to decide how the rules binding across the global network get made? Goldsmith writes that the WCIT “won’t affect what is really important, which is the bargaining power of nations for control over the network.” Is that what’s really important? I would have thought that what’s really important is that everyone has an equal right to participate in the processes by which rules binding upon them get made, and that whatever processes are used to make Internet-wide rules should somehow reflect the views and preferences of Internet users – not the governments that sometimes do, but often do not, reflect those views and preferences. Goldsmith and I have had a version of this argument before, and I continue to believe that Goldsmith’s Realpolitik position – which to my eyes amounts to “they’ve got the guns, so they make the rules” – strikes me as unprincipled. The Internet Protocols constitute a new language through which the peoples of the world can communicate with one another; by what right has it become the subject of the “bargaining power of nations” to decide its future? As with English, or Italian, or the system of musical notation or mathematical symbols, even if the governments of the world were to declare, at the WCIT or in the well of the General Assembly of the United Nations, that after due consideration they had reached the judgment that they have the “sovereign right” to make the rules and to decide the future course of their development, I don’t see a principled argument in favor of allowing them to do so. By what right is it theirs, and not a right belonging to Internet users in the aggregate, acting collectively? You know – the way it was built in the first place?

************************************
Some references on the World Conference on International Telecommunications
Forbes/CNET columnist Larry Downes has had a series of useful and highly informative articles about the ITU’s plans for the WCIT here, here, here, and here.
The wcitleaks.org site has been indispensable in compiling and distributing documents concerning the various WCIT agenda items.
The Internet Society and Center for Democracy and Technology pages devoted to WCIT and related matters are also extremely helpful in trying to parse the significance of the WCIT development.

We seem to have once again entered a  period in which we will be subject to more Jefferson-the-Perpetuator-of-Slavery bashing – witness the rather appalling Op-Ed piece in today’s NYT by Paul Finkelman on “The Monster of Monticello.”   The founding generation, Finkelman writes, helped perpetuate a “treason against the hopes of the world,” by “fail[ing] to place the nation on the road to liberty for all,” and “no  one bore a greater responsibility for that failure than the master of Monticello.”

This is truly outrageous and pernicious and a-historical nonsense.  The truth is that few people in human history did more, over the course of a lifetime, to “place the road on the road to liberty for all” — and indeed, to eliminate human slavery from the civilized world — than Jefferson.  Don’t take my word for it  - take Lincoln’s (who was himself, of course,  one of those “few people”).  ”I am sustained by Mr. Jefferson” he said, in 1858.

The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success.  Some dashingly call them “glittering generalities”; another bluntly calls them “self evident lies”; and still others insidiously argue that they apply only to “superior races.”  These expressions, differing in form, are identical in object and effect—the supplanting the principles of free government . . . We must repulse them, or they will subjugate us.

This is a world of compensations; and he who would be no slave, must consent to have no slave. Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.

All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.

That “abstract truth” being, of course, that all men were created equal, and that all had inalienable rights to life, to liberty, and to the pursuit of happiness.  Taking his cue from the 25th chapter of the Book of Proverbs – “a word fitly spoken is like apples of gold in pictures of silver” – Lincoln went on:

“The assertion of that principle, at that time, was the word ‘fitly spoken’ which has proved an ‘apple of gold’ to us.  The Union, and the Constitution, are the picture of silver, subsequently framed around it.  The picture was made, not to conceal or destroy the apple; but to adorn and preserve it.  The picture was made for the apple – not the apple for the picture.  So let us act, that neither picture, or apple, shall ever be blurred, or bruised, or broken.

It was Jefferson, Lincoln wrote, who realized that “there was a question of God’s eternal justice wrapped up in the enslaving of any race of men, or any man, and that those who did so braved the arm of Jehovah – that when a nation thus dared the Almighty every friend of that nation had cause to dread His wrath.”

Maybe Lincoln didn’t understand what was going on as well as Paul Finkelman now does, but I regard that as unlikely.

Why is this so hard for people to see? Even if Jefferson had done nothing more than pen those words and get them inserted into the foundational document for the new country — and he did plenty more, see my paper here — declaring that principle to be a self-evident truth and at the foundation of any legitimate government was an act of political courage, not cowardice or hypocrisy, at a time when slavery was at the heart of the way of life and an economy across vast swaths of colonial America.  Maybe Prof. Finkelman would have come up with a way to more quickly eliminate the institution from the new republic than Jefferson did, one that would have eliminated the horrible bloodshed of the Civil War.  But nobody had such a plan, at the time – not Jefferson, not Washington, not Clay, not anyone.

Jefferson, Finkelman tells us, was not a “particularly kind” slave-master; he sometimes “punished slaves by selling them away from their families and friends, a retaliation that was incomprehensibly cruel even at the time.” And he  believed that  ”blacks’ ability to reason was ‘much inferior’ to whites’ and that they were “in imagination they are dull, tasteless, and anomalous.”  So what?  Really – so what?  If you want to think that he was a bad guy — or even a really bad guy, with truly grievous personal faults — you’re free to do so.  But to claim that that has something to do with Jefferson’s historical legacy is truly preposterous.

Courtesy of Larry Downes and the (indispensable) WCITLeaks.org document repository, some evidence that the UN is gearing up for a public relations push in support of what Downes is (rightly) calling the “Anti-Internet Treaty” — viz., various proposals on the table  at the upcoming World Conference on International Telecommunications which would give the UN’s  International Telecommunications Union jurisdiction over setting Internet standards.  This is starting to feel, to me, a lot like the SOPA debates felt, six months or so before the dam broke and all hell broke loose.

It’s really easy to make the case that the ITU has, and should continue to have, absolutely nothing to do with the rules and protocols for the global TCP/IP network (which grew to its current prominence, of course, precisely because the ITU and the UN had absolutely nothing to do with its development and deployment).  It’s a little more difficult to say exactly how the Internet should be “governed,” whether it needs to be ‘governed,’ what form that “governance” should take, and similar questions that are going to become increasingly important, I think, over the next decade or so.  If any of you happen to be in DC on Thursday, I’ll be speaking at a New America Foundation/Slate/ASU conference on Internet governance on Thursday morning, trying to figure out a way to think about some of these questions.

Following on what I posted earlier about the Republican Study Commission’s now-retracted Report on Copyright reform and what it might mean for a developing new consensus on the right about the failure(s) of current copyright policy.  I should have noted there that the Mercatus Center is about to publish a book on this very topic (to which I have, incidentally, contributed a chapter) entitled “Copyright Unbalanced:  From Incentive to Excess”).  An idea that is clearly in the zeitgeist at the moment . . .

The Republican Study Committee  in the House of Representatives has issued an extremely interesting (though rather clumsily written and clumsily titled) Report on “Three Myths About Copyright Law, and Where to Start to Fix it.”  The Report is posted here

Actually, it’s not posted there anymore, having been removed by the RSC itself  . . . But (thanks, Dr. Internet!) you can read it here.  Paul Teller, the Executive Director of the RSC, issued this statement explaining the removal:

We at the RSC take pride in providing informative analysis of major policy issues and pending legislation that accounts for the range of perspectives held by RSC Members and within the conservative community.  Yesterday you received a Policy Brief on copyright law that was published without adequate review within the RSC and failed to meet that standard.  Copyright reform would have far-reaching impacts, so it is incredibly important that it be approached with all facts and viewpoints in hand.  As the RSC’s Executive Director, I apologize and take full responsibility for this oversight.  Enjoy the rest of your weekend and a meaningful Thanksgiving holiday....

Paul S. Teller  – Executive Director, U.S. House Republican Study Committee

I have no grounds for believing that this was an RSC ploy to increase readership of the Report.  [Admit it - you're more likely to read a Policy Brief on Copyright Law (yawn) if it was deemed too hot to handle by those who released it ...]

I’m flagging this as an Important Moment for the Internet –  historians of the future, take note.   I’ve been waiting a long time for libertarians and conservatives to wake up to what a stinking mess our copyright law is at the moment – an anti-innovative, speech-abridging mess (for you “libertarians”), and a over-regulated-haven-for-rent-seeking (for the  ”conservatives” among you).  [Admittedly, I've tried to do more than just wait for this to happen; how better to persuade libertarians and conservatives that copyright law needs a very substantial overhaul than to explain how perversely anti-Jeffersonian our current copyright policy is at the moment?]

The Report is well worth reading.  Current copyright law is “hampering scientific inquiry,” “stifiling the creation of a public library,”discouraging added-value industries,” “penalizing legitimate journalism and oversight,” and “retarding the creation of a robust DJ/Remix industry.”  The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.

Getting these ideas into the Republican mainstream is Phase II of the transformation of Copyright Politics – Phase I was 2011′s withdrawal of the egregious SOPA bill in the face of an unprecedented outpouring of opposition on the Net.  [My summary of all that is here, if you missed it]  Let the arguments begin!  I’m no politician, and politics bores the hell out of me, to be honest.  But if I’m looking for a way to pry young voters away from the Democrats . . . The Dems are beholden, often cravenly so, to Hollywood and Hollywood money and the copyright maximalist position that Hollywood usually espouses.  You’d think some other political party might try to ride this issue further than it has been ridden before.  Just sayin’ .

[Thanks to Eric Goldman, Greg Lastowka, and Blake Reid for the pointers]

Without much fanfare, Philip Roth has declared that he is retiring.  There’s a very nice appreciation by Panio Gianopoulos here on Slate, with others, surely, to follow.  The best American novelist since Faulkner?  Here’s my idiosyncratic list of his true masterpieces: Portnoy’s Complaint, American Pastoral, The Ghost Writer, The Human Stain, The Plot Against America, Everyman, and Sabbath’s Theater.   Who else is even in the conversation?

Here, for instance, in reverse chronological order, are the American novelists who’ve won the Nobel Prize since Faulkner’s in 1949:

Eugene’s post does raise one of the truly “unforeseen consequences” of this election:  the world of polling, and statistical analysis, will never be the same.  Not to take anything at all away from Silver — who has proven himself to be a very, very smart guy — but the point is: it’s not that he’s some sort of unimaginably brilliant seer who can predict the future, it’s that he has worked out and implemented a new way to aggregate large amounts of polling data and to squeeze out the maximum amount of information possible out of them.  I’m told, by those who know a lot more about this stuff than I do, that he’s not the only one out there in the world of statistical analysis who uses this methodology (and there will surely be a whole lot more of them tomorrow and the day after).

And here’s what’s funny (in a “statistics-is-fun!” kind of way) about it:  If  Romney had won, say, or if  the electoral count  had not eerily and perfectly matched the predictions of Silver’s model, most people would have taken that as a sign that he didn’t really know what he was doing, and his stock, as it were, would have plummeted;  conversely, because Romney didn’t win, and because Silver’s electoral tally predictions were spot on, we’re all thinking, this morning: the guy’s a genius.

But the actual results of the actual election can’t, in and of themselves, offer an adequate test of what he’s doing.  Silver’s algorithms generate probability distributions; he can simulate 10 million elections, all of which produce different results but all of which are consistent with all of the available data.  In 494 of those, Romney got  392 electoral votes; in 173,218 of hem, he got  285; in 873,488 of them he got 2 30; and so on.  Of the 10 million, Obama won (as of the day before the election) 9 million of them – hence his final “prediction” that Obama had a 90.1% chance of winning.

Damned interesting – but it’s not shown to be “correct” when Obama actually wins, and it would not have been shown to be incorrect had he lost.  One-in-ten events happen all the time — once every ten times, to be precise.  Probability distributions are properties of populations, not of single occurrences; that the Giants won the World Series does not mean you were “wrong” when you gave 2-1 odds that they’d lose, for it may well be true that if the teams played 10 million series, the Giants would lose 6.66 million of them.  Obama’s loss would not – could not – have confirmed or falsified Silver’s methods.

So actually, in a nice bit of irony, hejust got lucky!  He had said: when you spin the wheel on Nov 6th, the most likely outcome is:  Obama 313, Romney 225. He put his money (not to mention his reputation) where his mouth was.   We spun, and . . . his number came up!  What a lucky guy!

Every four years I submit myself to the slings and arrows of outraged VC readers and declare my personal views on the Presidential race.  Once again, the choice seems rather astonishingly clear, and once again the Dems have the better man.

Here’s how things look to me.  I’d give Obama maybe a B or B+  — which after the F the previous officeholder received, looks pretty decent to me.  Lots of things to complain about, for sure.  But he came into office in the midst of a  colossal catastrophe – a global economic meltdown [whatever its cause may have been, and whoever/whatever was responsible].  800,000 jobs lost the month before he becomes President!  And here we are today – unemployment going down (though more slowly than we’d like), the economy growing (though more slowly than we’d like), job creation picking up (though more slowly than we’d like).  For some reason I cannot even fathom, many otherwise reasonable people seem to regard this as a terrible failure on Obama’s part.

On the world scene, we’re out of Iraq, getting out of Afghanistan, and as far as one can tell Al-Qaeda and the other militant jihadist groups are at least unable to cause us serious damage at home.  The world is a scary place – but it doesn’t seem to me that Obama (unlike, say, Bush) made it scarier.

And finally, there’s Romney.  I guess there are people who think that he would have  managed the last 4 years better than Obama did, but I’m sure not among them.  The guy’s as light a lightweight as I can imagine – he makes Bush look like Schopenhauer.  I shudder to think how he reacts when, say, Israel bombs Iran’s  reactors, or Iran bombs Israel, or both, or when someone figures out how to shut down the Grid, or when war breaks out in northern Mexico, or when any of the terrible things we can’t even imagine happening actually happen.  My guess is that he reacts  the way Bush reacted when something he couldn’t imagine happening actually happened — Hurricane Katrina springs to mind – and it’s not a comforting thought.

As they say:  my $0.02.

Yesterday, a group of 34 law professors filed an amicus brief that I drafted in the 2d Circuit’s WNET  et al v Aereo case.  The case is a really interesting one — techdirt has a good write-up here about it.  Aereo is in the business of allowing consumers, in effect, to rent a little teeny TV antenna that can pick up over-the-air broadcasts, and a little teeny bit of disk storage space, and then to record over-the-air programming for later viewing over the Net.  A coalition of broadcasters (like WNET, ABC, etc.) and content providers (Disney, Fox Entertainment) have brought suit, asserting that this amounts to copyright infringement as a “public transmission” of copyrighted content.  Aereo defends, relying primarily on the 2d Circuit’s Cablevision case from several years ago (which I was also involved in, and which I blogged about here), which held that a cable system’s DVR service (which did more-or-less what Aereo is doing, except for cable programming rather than over-the-air broadcasts) was NOT infringing copyright because the service, which allowed individual users to utilize “their own” recordings, was not transmitting the copyrighted content “to the public.”

Lots of interesting and complicated copyright issues here – but our brief doesn’t really take them on.  It’s focused on a much more abstract point of copyright policy, namely the question of how the Copyright Act should be construed when it is silent or ambiguous on a particular question (involving the copyright implications of some new technological development that the statute’s drafters had not contemplated).  We felt compelled to submit something because one of the amicus briefs submitted on plaintiffs’ behalf, by the former Register of Copyright Ralph Oman, said this:

If Congress wants to permit Internet streaming, it is free to do so, but the burden should not be placed on businesses in Appellants’ circumstances to get some sort of congressional reaffirmation that the Transmit Clause applies to Internet retransmissions. . . . The courts should not saddle the copyright owner with having to convince Congress to act to prohibit unauthorized Internet retransmissions. Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

That is flat-out wrong – at least, so we argue in the brief.

The Copyright Act favors neither copyright owners nor technology innovators; it seeks the balance between them that best serves the public interest in the creation and dissemination of creative works of authorship.  That balance is for Congress, ultimately, to strike.  When the statute is silent or ambiguous on the copyright implications of a new technology– where Congress has not (yet) spoken on the question or performed the necessary and often-difficult balancing of competing interests – the court’s role in construing the statute is not to produce maximum authorial reward, but maximum public benefit.  Where that means (as it often does) that it is the copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips more in their favor, they are entitled and well-equipped to do that, as they have done so often in the past.

It’s a really important principle – copyright law does not exist for the benefit of authors; it uses the benefit granted to authors because that is a means to increase the creation and the availability of creative works to the public.  Deciding whether the law should, or should not, declare some new technology to be infringing is for Congress to decide — and it is the copyright holders, generally speaking, who do and who should bear the burden of persuading Congress to include some new technology to be within their exclusive control, rather than the technology providers having to persuade Congress that they’re entitled to some exemption.

Yesterday, the federal district court in Nebraska issued its decision declaring most of Nebraska’s Sex Offender Registry statute unconstitutional as an abridgement of the freedom of speech protected by the 1st Amendment.  I was the Plaintiffs’ Expert in the case, so I was delighted with the outcome (and I will oh-so-discreetly point you to footnote 35, should you be interested in information about my involvement with the case).  It’s a fascinating bit of law and sociology; I had decided not to blog about it before a decision was rendered because of my involvement with the case, but now that the court has ruled in our favor, a few words.

The statute made it a  crime –  ”unlawful use of the Internet by a prohibited sex offender” — for any person who was required to register with the federal Sex Offender Registry because of a prior conviction for one of a series of enumerated sex offenses (e.g., sexual assault of a child, “pandering” of a minor, child pornography, or criminal child enticement)  to:

“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”

“Social networking site,” “instant messaging service,” and “chat room service” were all specially defined in the statute:

 “Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator’s permission, consent, invitation, or authorization, and (c) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator’s profile[.]”

“Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users; . . .

“Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network; . . .

In a thoughtful and well-written opinion, Judge Kopf held that the statute was not “narrowly tailored to serve its purpose of protecting children from those offenders who pose a  risk to them through the use or threatened use of the banned sites or services:

“Whatever else the words of Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+ together with a large number of other utilities.   In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet.  This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.  The risk posited by the statute is far too speculative when judged against the First Amendment. The broad scope of the ban is a fatal deficiency.”

It was an ugly bit of legislation; putting heavier and heavier  burdens on those who have been convicted of sex crimes (and who have served their prison sentences) seems to be a popular national pastime these days (Russell Banks’ most recent novel, “Lost Memory of Skin,” has an interesting take on this phenomenon), and it strikes me as  vindictive and mean-spirited and cruel.  To tell someone, as Nebraska had done here, that because of your prior conviction you will  never be permitted, in effect, to use the Internet for just about anything — because virtually every social networking site or chat room service out there, however you define them, “allows persons under the age of 18 to access or use [it],” and is therefore off-limits to you — is a crushing blow for someone who might — just might — be trying to put his life back together, and it virtually guarantees that he will not be able to do so.  It has no purpose other than to punish those who have already been punished, and I was very gratified to see that Judge Kopf agreed, and very gratified that I played some part in getting him to agree.

A local law firm is coming to our law school to do some recruiting, and the memo posted around the school notes that the firm has a “Diversity Scholarship” program, and goes on to say:  ”Women and Diverse Students Encouraged to Apply.”

Aargh.  There are no “diverse students” here, or anywhere else — diversity is a characteristic of populations, not of individuals.  I’ve long ago gotten used (reluctantly) to the use of the word “minority” in this way – are we going to have to go through the same thing for “diversity”?

This weekend is “international qualifying” weekend in the world of international soccer, when the players leave their club teams and return home to play in qualifying matches for their countries for the next World Cup.  In Europe, as elsewhere, you’re entitled to participate in this pre-World Cup qualifying tournament if (a) you’re a country, and (b) you can field a squad of some kind.  So, along with the colossi of Spain, Germany, Italy, England, the Netherlands, and the like, you’ve got San Marino, Andorra, and the Faroe Islands (total population for all three around 150,000).

What’s pretty interesting is that these teams actually often give the superstars they’re facing a decent game of it.  With squads  composed of  part-timers and amateurs  who are a good 3 or 4 notches below the superstars of England, Italy and the rest on the highly logarithmic scale of skill – I’d estimate (from having watched some of these games this weekend), about equivalent to a good US Division 3 squad — they manage, time and time again, to make a game of it.  Some recent scores:  England 5  San Marino  0;  Italy 2 Malta 0;  Sweden 2 the Faroe Islands 1 (!), and Netherlands 3 – 0 over Andorra.

The odd fact is that in soccer, if you have decent skill, and you’re really, really determined, you can keep a team full of international superstars who are a LOT better than you from trampling you in the dust. [And if you're wondering whether those English or Dutch players are really trying hard, the answer is - they are.  Qualifying for the World Cup is a really big deal, and really difficult, in Europe, and the number of goals you score can end up determining whether you make it or not; so yes, they're trying to trample them in the dust 12-0 if possible].

It’s interesting to think of how different sports fare on this scale.   I can’t think of another sport where a decent D-III squad  gives an All-Star professional team nearly as good a game.  My guess for the average score by sport (assuming the pros are working hard, trying their best):

Basketball     NBA All-Stars 242 – decent D III squad 30

Baseball         MLB All-Stars 34 – decent D III squad 2

Hockey          NHL All-Stars 27, decent D III squad 1

And football?  Too scary to think about.  The NFL Pro Bowlers vs. say Williams College, where the pros are playing the way they do on any given Sunday, is not a game I’d like to watch, even in my mind’s eye . . .